Doc. 8462

8 July 1999

Respect for international humanitarian law in Europe

Report

Committee on Migration, Refugees and Demography

Rapporteur: Mr Erik Jurgens, Netherlands, Socialist Group

Summary

The year 1999 marks the fiftieth anniversary of the four Geneva Conventions of 1949 which, together with their two Additional Protocols of 1977, are the principal instruments of international humanitarian law. They comprise rules which, in times of armed conflict, seek to protect persons who are not, or are no longer, taking part in the hostilities, and to restrict the means and methods of warfare employed.

Tragically, it must also be said that 1999, the year in which the Council of Europe celebrates its own fiftieth anniversary, marks one of the lowest points in the history of respect for international humanitarian law in Europe. The conflict in Kosovo has seen some of the worst reported abuses in recent years, coming in the wake of previous wars in the territory of the former Yugoslavia and also in the Caucasus.

This report seeks to draw the attention of members of the Assembly to the importance of international humanitarian law and its implementation at national level, to take stock of the state of ratification of the main instruments of international humanitarian law, and to make recommendations to the member states designed to strengthen respect for humanitarian law in Europe.

I.       Draft recommendation

1.       The year 1999 marks the fiftieth anniversary of the four Geneva Conventions of 1949 which, together with their two Additional Protocols of 1977, are the principal instruments of international humanitarian law. This "law of Geneva", as it is sometimes called, comprises rules which, in times of armed conflict, seek to protect persons who are not, or are no longer, taking part in the hostilities, and to restrict the means and methods of warfare employed.

2.       Coincidentally, 1999 is also the centenary of the First Hague Peace Conference, which adopted the first of the "Hague Conventions" (also known as "the law of war") establishing the rights and obligations of belligerents in the conduct of military operations and seeking to limit the means of harming the enemy.

3.       Tragically, it must also be said that 1999, the year in which the Council of Europe celebrates its own fiftieth anniversary, marks one of the lowest points in the history of respect for international humanitarian law in Europe. The conflict in Kosovo has seen some of the worst reported abuses in recent years, coming in the wake of previous wars in the territory of the former Yugoslavia and also in the Caucasus. Hence the world, and Europe not least, more than ever needs the protection afforded by international humanitarian law and the institutions set up to implement it.

4.       It is essential that the Council of Europe member states do everything possible to promulgate as widely as possible and to ensure respect for international humanitarian law. It is an obligation for all states parties to the Geneva Conventions and the Additional Protocols to adapt their national legislation so that these texts can be implemented and penalties for violations be established by law. Parliamentarians have a particular responsibility in this regard.

5.       The Parliamentary Assembly considers it essential that violations of humanitarian law are punished so as to ensure that a "culture of impunity" does not take root. The permanent International Criminal Court with universal jurisdiction is to be welcomed, and the Assembly reaffirms its Recommendation 1408 (1999) on the International Criminal Court, calling in particular on the member states to ratify the Court's Statute as soon as possible. Pending the start of its deliberations everything must be done to ensure that the International Criminal Tribunals for the former Yugoslavia and Rwanda are able to carry out their work.

6.       However, no international tribunal can take the place of states in meeting their obligation to ensure the proper enforcement of international humanitarian law in regard to persons committing violations of that law, ordering others to commit them or condoning these actions, wherever they take place and irrespective of the nationality of their author.

7.       The Assembly pays tribute to the International Committee of the Red Cross (ICRC) for its unique efforts to protect and assist the victims of armed conflicts all over the world and to promote respect for international humanitarian law as guardian of the Geneva Conventions and their Additional Protocols.

8.       The Assembly recommends that the Committee of Ministers:

i.       invite the appropriate bodies:

      a. to give greater emphasis to international humanitarian law in drawing up programmes of legal co-operation and training;

      b. to include compliance with international humanitarian law in monitoring activities;

ii.       invite the governments of the member states:

      a. to ratify, if they have not already done so, Additional Protocols I and II of 1977 to the Geneva Conventions of 1949, and to lift any reservations they may have to these instruments;

      b. to ensure that all their obligations arising from these instruments are systematically reviewed and carried out;

      c. to establish, if they have not already done so, national interministerial commissions responsible for monitoring and implementing international humanitarian law;

      d. to recognise the jurisdiction of the International Fact-Finding Commission established pursuant to Additional Protocol I to the Geneva Conventions and to submit enquiries to it;

      e. to increase resources devoted to the dissemination of the principles of international humanitarian law, particularly among the armed forces, police and prison staff;

      f. to grant the International Committee of the Red Cross unrestricted access to persons deprived of liberty in connection with armed conflict or internal strife;

      g. to increase their financial support for the International Committee of the Red Cross.

II.       Draft order

With reference to its Recommendation .... (1999), the Parliamentary Assembly resolves to intensify its own monitoring of compliance with international humanitarian law and instructs its Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) to include investigations into such compliance in its activities.

III.       Explanatory memorandum by Mr Jurgens

Contents

Page

1. Introduction       6

2. Development and essence of international humanitarian law       6

2.1 Development       6

2.2 The essential rules of international humanitarian law       9

3. Implementing measures to be taken at national level       9

3.1 General considerations       9

3.2 Penal repression       10

3.3 Protection of the red cross and red crescent emblem       10

3.4 Dissemination       11

4. Recent experience of violations of international humanitarian law

in Europe       12

5. Enforcement of international humanitarian law by national and

international courts       12

6. Mandate and action of the International Committee of the Red Cross

(ICRC)       13

6.1 General overview       13

6.2 Monitoring respect for international humanitarian law       14

6.3 ICRC activities to mark the 50th Anniversary of the Geneva

Conventions       14

7. Conclusions       15

Appendix: Extract from the Rome Statute of the International Criminal

Court       16

1. Introduction

1.       1999 marks the fiftieth anniversary of the four Geneva Conventions of 1949 which, together with their two Additional Protocols of 1977, are the principal instruments of international humanitarian law. This "law of Geneva", as it is sometimes called, comprises rules which, in times of armed conflict, seek to protect persons who are not, or are no longer, taking part in the hostilities, and to restrict the means and methods of warfare employed.

2.       Coincidentally, 1999 also marks the centenary of the First Hague Peace Conference, which adopted a first group of "Hague Conventions" (also known as "the law of war") establishing the rights and obligations of belligerents in the conduct of military operations and seeking to limit the means of harming the enemy.

3.       Tragically, it must also be said that 1999, the year in which the Council of Europe celebrates its own fiftieth anniversary, marks one of the lowest points in the history of respect for international humanitarian law in Europe. The conflict in Kosovo has seen some of the worst reported abuses in recent years, coming in the wake of previous wars in the territory of the former Yugoslavia and also in the Caucasus.

4.       The Committee on Migration, Refugees and Demography, in fulfilment of its mandate to consider humanitarian issues, seeks in this report to draw the attention of members of the Parliamentary Assembly to the importance of international humanitarian law and its implementation at national level, to take stock of the state of ratification of the main instruments of international humanitarian law, and to make recommendations to the member states designed to strengthen respect for humanitarian law in Europe.

5.       This report is partly inspired by the proceedings of the Colloquy on International Humanitarian Law organised by the Committee in Prague on 21-23 March 1996, in co-operation with the Czech Parliament and the International Committee of the Red Cross (ICRC), the body responsible under the Geneva Conventions for promoting and monitoring their implementation, and the findings of the Rapporteur's visit to ICRC headquarters in Geneva on 15 March 1999. He would like to take this opportunity to thank all those who took time to meet him on that occasion and for their willingness to comment on the draft report.

2.       Development and essence of international humanitarian law

2.1       Development

6.       However far we look back in human history, we find that civilisations have laid down rules, often religious in inspiration, to contain the violence of war. Indeed, as Mr François Bugnion of the ICRC has said, "the limitation of violence is the very essence of civilisation". Humanitarian law developed at first in the form of customary law, that is, unwritten rules based on customs that regulated armed conflicts.

7.       Contemporary international humanitarian law has developed through international conventions or treaties following the adoption in 1864 of the first Geneva "Convention for the amelioration of the conditions of the wounded in armies in the field", the result of Swiss businessman Henry Dunant's distressing experience as a chance witness of the suffering, and organiser of humanitarian assistance, at the Battle of Solferino five years earlier. This set a pattern whereby international humanitarian law often progressed in reaction to new episodes in the history of conflict and to new developments in the means of warfare.

8.       Thus the four Geneva Conventions of 1949 (I – Amelioration of the condition of the wounded and sick in armed forces in the field; II – Amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea; III – Treatment of prisoners of war; IV – Protection of civilian persons in time of war), which built on earlier conventions and treaties, were in part a response to the horrors of the Second World War. The Geneva Conventions introduced an important innovation in that they covered internal armed conflicts for the first time, in Article 3 common to all four of the Conventions. Furthermore they required the contracting parties to publicise their provisions among the armed forces, and they introduced the concept of "grave breaches" punishable by whichever party has custody of the alleged offender. Additional Protocols I and II of 1977, which strengthened protection for the victims of international and non-international armed conflicts respectively, were partly designed to take account of changes in the nature of such conflicts, and in particular of "wars of national liberation" (Protocol I). Together these texts constitute the main corpus of international humanitarian law, comprising almost 600 articles. Although widely ratified, of the 188 states parties to the Geneva Conventions, 34 have not become parties (by ratification or accession) to Protocol I (including 4 Council of Europe member states1) and 42 have not become parties (by ratification or accession) to Protocol II (including 3 Council of Europe member states2). Furthermore, several Council of Europe member states are among those which made reservations at the time of ratifying or acceding to the Conventions and/or Protocols3.

9.       The United Nations was involved during the early post-war years in establishing rules for international co-operation in the prevention and punishment of crimes against peace, war crimes, and crimes against humanity4. Thus in 1946 the General Assembly adopted Resolution 95 (I) which reaffirmed as valid principles of international law the so-called "Nuremberg principles" defining the above-mentioned three categories of crimes falling within the jurisdiction of the International Military Tribunal and for which personal liability could be invoked, regardless of whether the alleged crimes were committed in the performance of official duties or in carrying out orders. In this connection, the General Assembly also approved the 1948 Convention on the Prevention and Punishment of the Crime of Genocide.

10.       In 1968 the United Nations General Assembly endorsed, in Resolution 2444 (XXIII) on respect for human rights in armed conflicts, certain recommendations of the International Conference on Human Rights in Teheran, notably asking the Secretary-General, after consulting with the ICRC, to study ways to secure the better application of existing humanitarian international conventions and rules in all armed conflicts and to examine the need for additional humanitarian international conventions or for possible revision of existing Conventions to ensure the better protection of civilians, prisoners of war and combatants in all armed conflicts and the prohibition and limitation of the use of certain methods and means of warfare. As a result, the Secretary-General presented a series of reports on respect for human rights in periods of armed conflict, and the General Assembly adopted a number of Resolutions and Declarations on such subjects as the protection of women and children, the protection of journalists, and the legal status of combatants struggling against colonial and racist regimes for the right to self-determination.

11.       Other attempts after 1945 to limit the effects of warfare include the 1954 Hague Convention for the protection of cultural property in the event of armed conflict; the 1972 Convention on the prohibition of the development, production and stockpiling of bacteriological (biological) and toxic weapons and on their destruction; the 1980 Convention on prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects (with its four Protocols, the fourth, of 1995, relating to blinding laser weapons); and the 1997 Convention on the prohibition of the use, stockpiling, production and transfer of anti-personnel mines and their destruction. Although falling outside the scope of international humanitarian law, mention should also be made of the efforts to prohibit the use, testing and proliferation of nuclear weapons.

12.       The potential for comprehensive enforcement of international humanitarian law has been significantly strengthened in recent years with the setting up in 1993 of the International Tribunal for the prosecution of persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia since 1991, its counterpart in Rwanda in 1994, and the Rome Treaty of 1998 setting up a permanent International Criminal Court5.

13.       It may be said that these various steps and strands in the development of international humanitarian law in the post-war era correspond closely to the ideas and principles underlying the foundation of the Council of Europe fifty years ago and its pioneering work since. Human rights law, which has to do with the protection and rights of the individual and which the Council of Europe has done so much to develop, is not the same as humanitarian law, but to quote François Bugnion of the ICRC again, "there can be no respect for human rights in time of war without respect for humanitarian law." The Council of Europe, as the widest intergovernmental and interparliamentary European organisation based on the principles of democracy, human rights, and the rule of law, is in a unique position, in cooperation with the ICRC and non-governmental organisations, to promote the acceptance, monitoring and enforcement of international humanitarian law in the member states.

2.2       The essential rules of international humanitarian law

14.       The ICRC has drawn up a list of rules, designed for promotional purposes and not as a legal instrument, which summarise the essence of international humanitarian law as follows:

15.       "Persons who do not or can no longer take part in the hostilities are entitled to respect for their life and for their physical and mental integrity. Such persons must in all circumstances be protected and treated with humanity, without any unfavourable distinction whatever.

16.       It is forbidden to kill or wound an adversary who surrenders or who can no longer take part in the fighting.

17.       The wounded and sick must be collected and cared for by the party to the conflict which has them in its power. Medical personnel and medical establishments, transports and equipment must be spared. The red cross or red crescent on a white background is the sign protecting such persons and objects and must be respected.

18.       Captured combatants and civilians who find themselves under the authority of the adverse party are entitled to respect for their life, their dignity, their personal rights and their political, religious and other convictions. They must be protected against all acts of violence or reprisal. They are entitled to exchange news with their families and receive aid.

19.       Everyone must enjoy basic judicial guarantees and no one may be held responsible for an act he has not committed. No one may be subjected to physical or mental torture or to cruel or degrading corporal punishment or other treatment.

20.       Neither the parties to the conflict nor members of their armed forces have an unlimited right to choose methods and means of warfare. It is forbidden to use weapons or methods or warfare that are likely to cause unnecessary losses or excessive suffering.

21.       The parties to a conflict must at all times distinguish between the civilian population and combatants in order to spare the civilian population and civilian property. Neither the civilian population as a whole nor individual civilians may be attacked. Attacks may be made solely against military objectives."

3.       Implementing measures to be taken at national level

3.1       General considerations

22.       Since international humanitarian rules are set out in conventions and treaties which are binding only on the states which have ratified them, the question arises how they are to be made binding and enforceable as far as individuals are concerned. In many countries, the courts are not competent to apply the provisions of such international conventions directly if victims of violations of humanitarian law appeal to them, and these conventions do not specify penalties for violations. Hence it is essential that the contracting states adopt implementation measures as necessary in order to convert the provisions of international conventions into their domestic legal order, so as to ensure that these international rules become a source of obligation for individuals and the courts can enforce respect for them. Moreover, it is vital that such measures be adopted in peacetime, since they must be in effect on the outbreak of war.

23.       In the case of the 1949 Geneva Conventions, the obligation to take the necessary legal steps to implement them is expressly provided for by the Conventions themselves. Thus Article 1 common to the Conventions states that: "The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances." And Article 80 of Protocol I states that "The High Contracting Parties and the Parties to the conflict shall without delay take all necessary measures for the execution of their obligations under the Conventions and this Protocol."

3.2       Penal repression

24.       The four Conventions (in a common Article numbered 49, 50, 129 and 146 respectively) state that "The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention...". These grave breaches are listed in Articles 50, 51, 130 and 147 common to the four Geneva Conventions, supplemented by Protocol I (Article 11, paragraph 4 and Article 85, paragraphs 3 and 4).

25.       Responsibility for repression of grave breaches of international humanitarian law falls to the Parties to the conflict but also to the other Contracting Parties. More specifically, the maxim aut judicare aut dedere has to be applied. In case of a grave breach, a Contracting Party can choose whether to bring the authors before its own courts or "hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case." The obligation to repress grave breaches is independent of the nationality of the author and of the place where the act was committed, in accordance with the principle of "universal penal jurisdiction". This principle lays on all states Parties to humanitarian treaties an absolute obligation to effectively repress such acts; only universal repression can ensure real respect for humanitarian law. Even an agreement between interested Parties could not invalidate this principle.

3.3       Protection of the red cross or red crescent emblem

26.       The red cross or red crescent emblem is used for protective purposes to identify medical personnel, units and transport, Red Cross and Red Crescent workers, etc. and also to indicate a link with the international Red Cross and Red Crescent Movement. States parties to the Geneva Conventions are required to enact legislation (the ICRC has updated a model law for this purpose) that defines the red cross or red crescent emblem, specifies the persons and property protected by this emblem, determines lawful and unlawful use, and prescribes penalties for various abuses. These include imitation with a view to profiting from the good reputation of the Red Cross and Red Crescent Movement; usurpation of the emblem by bodies or persons not entitled to use it; and, more seriously, perfidious use of the emblem in time of conflict, for example as cover for combatants or military equipment.

3.4       Dissemination

27.       Like every branch of law, humanitarian law can only be respected if those who have to apply it are fully acquainted with it. This seems obvious but is not in fact the case, although dissemination of this law and study thereof by the armed forces constitute a conventional obligation which states have undertaken to fulfil in time of peace. (Art. 47, 48, 127, 144 common to the Conventions, Article 83, Protocol I and Article 19, Protocol II).

28.       Humanitarian law also lays down obligations about resources to back up the work of dissemination.

29.       Among these, Article 6 of Protocol I stipulates that lists shall be made of "qualified personnel". These lists shall comprise persons with training and interest in humanitarian law and be held at the disposal of states by the ICRC. In peacetime, the qualified personnel can contribute to dissemination.

30.       Another important provision of humanitarian law contributing to its dissemination concerns "Legal advisers in armed forces" contained in Article 82, Protocol I. Legal advisers do not replace military commanders, who are always responsible for what happens in their sector. They advise military commanders in the preparatory phase of a military operation, during its execution and afterwards. To this effect, they will have received training in humanitarian law.

31.       In addition to their advisory role, legal advisers must be able to play an important role in dissemination. This should consist of supervising the planning of the education of the lower ranks about the law of armed conflict and ensuring that instruction is on-going.

32.       The ICRC has a particular role in the dissemination and promotion of international humanitarian law, and is constantly seeking to assist states to fulfil their obligations. For example, the ICRC organises regional seminars, has encouraged the setting up of National Implementing Commissions, and provides an Advisory Service. The National Commissions are meant to promote the implementation of international humanitarian law and to see that it is properly applied. They are made up of representatives of the various government departments concerned. All Council of Europe member states which have not yet done so should set up such Commissions.

33.       The ICRC's Advisory Service provides assistance to states in many fields, for example, translating the Geneva Conventions and Additional Protocols into national languages; incorporating international humanitarian law into national law if necessary (eg. on protection of the emblem and on repression of war crimes); incorporating instruction in international humanitarian law into official training programmes for the armed forces; designating and training legal advisers, etc.

34.       One recent initiative of interest to parliamentarians is the creation within the Inter-Parliamentary Union (IPU) of an "Ad hoc Committee to promote respect for international humanitarian law", which is to report on parliamentary measures taken to implement such law.

4.       Recent experience of violations of international humanitarian law in Europe

35.       There is perhaps no need to describe at great length or in great detail the sorts of serious violations of international humanitarian law that have been reported during recent and present conflicts in Europe, from the territory of the former Yugoslavia to the Caucasus. They are only too well known and constitute the tragic daily fare of the news media, the subject of consistent and credible reports by refugees and humanitarian organisations, and the growing case law of the International Criminal Tribunal for the former Yugoslavia, which has made several convictions and is expecting to make many more.

36.       Alleged and proven violations include grave breaches of the Geneva Conventions such as wilful killing; torture or inhuman treatment, both mental and physical; wilfully causing great suffering or serious injury to body or health, including mutilations; unlawful deportation or transfer; illegal detention; the taking of hostages; and the destruction and appropriation of property not justified by military necessity and carried out on a large scale in an arbitrary and unlawful way. They also include crimes against humanity such as genocide as defined in the 1948 Convention, extermination, enslavement and rape.

37.       Grave breaches under the Geneva Conventions and Protocols also include, where such acts result in death or serious injury to body or health, wilful attacks on the civilian population, civilians and civilian property, as well as attacks launched indiscriminately or attacks on works and installations containing dangerous forces, in the knowledge that such attacks will cause loss of lives, injury to civilians or damage to civilian property which are excessive in relation to the actual and direct military advantage expected.

5.       Enforcement of international humanitarian law by national and international courts

38.       Of course allegations of serious violations of international humanitarian law have to be proven, and this is the task of national courts or of the relevant international courts which have custody of the offender. Under the Geneva Conventions, as has been said, states parties are obliged either to take legal action against such offenders, even where they are foreigners who committed the alleged offence abroad, or to extradite them. This is the essence of the concept of universal jurisdiction and the Council of Europe should do more to remind member states of their obligations.

39.       Despite this obligation, it must be said that states are very reluctant to prosecute their own nationals, who may in extreme circumstances be considered in their own countries as war heroes rather than war criminals, or a fortiori to hand them over to the courts of the country with which they are or were in conflict.

40.       Hence the importance of the establishment of the ad hoc international criminal courts such as the one for former Yugoslavia, and better still the permanent International Criminal Court foreseen under the Rome Treaty of July 1998, in so far as they may be considered impartial and not instruments for the punishment of the vanquished. However, it must be said that the International Criminal Court is subject to a number of shortcomings, not least that it permits states to declare that they do not accept the jurisdiction of the Court for a period of seven years with respect to war crimes when they are alleged to have been committed by their nationals or on their territory. This, however, is the subject of a separate Assembly report prepared by the Committee on Legal Affairs and Human Rights and debated by the Standing Committee on 26 May 19996.

41.       There are other mechanisms which can be used for the implementation of international humanitarian law, not least the International Fact-Finding Commission set up in 1992 pursuant to Article 90 of Additional Protocol I, which stipulates that the Commission "shall be competent to: (i) enquire into any facts alleged to be a grave breach as defined in the Conventions and this Protocol or other serious violation of the Conventions and this Protocol, (ii) facilitate, through its good offices, the restoration of an attitude of respect for the Conventions and this Protocol." This Commission, although in existence, has never been used. It should be pointed out that requests for enquiries are not limited to the parties to armed conflict: thus the Council of Europe could initiate such an enquiry7.

42.       Finally, it must again be emphasised that the fundamental and on-going responsibility for preventing and punishing crimes against humanitarian law lies and will continue to lie with states. No international tribunal or fact-finding commission can discharge states from their continuing obligation to act to repress serious violations of international humanitarian law.

6.       Mandate and action of the International Committee of the Red Cross (ICRC)

6.1       General overview

43.       The ICRC is a Swiss private law institution unlike any other humanitarian organisation in that it has received a mandate from the states Parties to the Geneva Conventions in connection with their implementation. For example, the Conventions and Protocol I recognise the ICRC's right during international armed conflicts to bring relief to wounded, sick or shipwrecked military personnel; visit prisoners of war; take action on behalf of the civilian population; and ensure that protected persons are treated in accordance with the law. During internal armed conflicts, the ICRC bases its action on Article 3 common to the four Conventions and on Protocol II. These recognise the ICRC's right to offer its services to the parties to the conflict, for example with a view to undertaking relief operations or visiting detained persons.

44.       Moreover, under the Statutes of the International Red Cross and Red Crescent Movement, the ICRC has a right of initiative in humanitarian matters during violent situations such as internal disturbances, allowing it to offer its services in any situation which requires the presence of a specifically neutral and independent intermediary (the courageous representative of the ICRC who undertook just such a mission during the hostage-taking episode at the Japanese Embassy in Lima in 1996 springs to mind).

45.       Relief operations may include provision of food aid; building shelters and distributing tents, clothing, blankets, etc.; and emergency agricultural and veterinary assistance. Health activities include looking after the war-wounded; supporting existing health services; providing water and sanitation infrastructure; and nutrition assessment. Further essential tasks are the tracing of missing persons through the Central Tracing Agency and transmitting Red Cross messages, as well as visits to persons deprived of their freedom with a view to their protection and improving conditions of detention.

6.2       Monitoring respect for international humanitarian law

46.       Under the Statutes of the International Red Cross and Red Crescent Movement, it is the ICRC's duty "to undertake the tasks incumbent on it under the Geneva Conventions, to work for the faithful application of international humanitarian law applicable in armed conflicts and to take cognizance of any complaints based on alleged breaches of that law".

47.       If in the performance of its tasks the ICRC observes a violation of the Geneva Conventions or the Additional Protocols, it makes a confidential approach to the authorities responsible for the incident. Where violations are serious, repeated, and established with certainty, it reserves the right to take a public stance by denouncing this failure to respect humanitarian law, provided that it deems such publicity to be in the interests of those affected or threatened by the violations. Such a step is therefore exceptional.

48.       Consequently, the ICRC neither investigates nor prosecutes offences, because punishing those responsible for violating international humanitarian law is a matter for the states party to the Geneva Conventions, as we have seen.

6.3       ICRC activities to mark the 50th Anniversary of the Geneva Conventions

49.       For the ICRC, the 50th anniversary of the Geneva Conventions is an opportunity to reflect on what has occurred during the half-century since their adoption, to take stock of the present, and to consider the future of international law and humanitarian action. One way of doing this is through an unusual ICRC project entitled "People on War". From November 1998 to August 1999, the ICRC is gathering the opinions of thousands of people in a dozen countries, including Bosnia and Herzegovina and Georgia, who have been directly affected by armed conflict. They are being asked their views on the limits to warfare set by international law and on how to improve compliance with the Geneva Conventions and other humanitarian treaties. These will be published along with the results of a parallel survey conducted in countries at peace, and presented to the 27th International Conference of the Red Cross and Red Crescent (Geneva, 31 October-6 November 1999). The project participants' personal stories will be told in publications, in the media and on an interactive website. The project is intended to increase awareness around the world of the rules that already exist for people's protection in wartime and to encourage discussion of humanitarian law in the context of modern-day conflict.

7.       Conclusions

50.       The purpose of international humanitarian law is to limit the suffering of the victims of armed conflicts, both international and internal. Tragically, such conflicts, especially internal, have not disappeared since the end of the Cold War, but have rather intensified. They have given rise to grave violations of humanitarian law. The world has witnessed the horrifying spectacle of violence against civilian populations, including women and children. Hence the world, and Europe not least, needs the protection afforded by international humanitarian law and the institutions set up to implement it.

51.       It is therefore essential to promulgate humanitarian law as widely as possible and to ensure that it is respected. It is an obligation for all states parties to the Geneva Conventions and the Additional Protocols to adapt their national legislation so that these texts can be implemented and penalties for violations established by law. Parliamentarians have a particular responsibility in this regard.

52.       Furthermore, it is essential to punish violations of humanitarian law in order to ensure that a "culture of impunity" does not take root. The permanent International Criminal Court with universal jurisdiction is to be welcomed, despite some shortcomings, and pending the start of its work everything must be done to ensure that the International Criminal Tribunals for the former Yugoslavia and Rwanda are able to carry out their work.

53.       However, no international tribunal can take the place of states in meeting their obligation to ensure the proper enforcement of international humanitarian law in regard to persons committing violations of that law, ordering others to commit them or condoning these actions, wherever they take place and irrespective of the nationality of their author. In this connection there is a need to guarantee the independence of the judiciary in relation to the executive and to the armed forces. This is a long-established principle, but it is still necessary to make sure that it applies without reservations. A further necessity is to ensure that international humanitarian law takes precedence over national legislation.

54.       States are also responsible for disseminating the principles of international humanitarian law, and those which have not yet done so should establish national interministerial commissions responsible for monitoring and implementing international humanitarian law, a task in which they are ably assisted by the International Committee of the Red Cross, an institution which deserves full support from all Council of Europe member states.

55.       Council of Europe member states must do more to monitor and ensure respect for international humanitarian law in Europe. This would be a fitting objective in the 50th anniversary year of both the Council of Europe and the Geneva Conventions.

APPENDIX

EXTRACT FROM THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT

Article 5 - Crimes within the jurisdiction of the Court

1.       The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:

a)       The crime of genocide;

b)       Crimes against humanity;

c)       War crimes;

d)       The crime of aggression.

2.       The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted in accordance with articles 121 and 123 defining the crime and setting out the conditions under which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be consistent with the relevant provisions of the Charter of the United Nations.

Article 6 - Genocide

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

a)       Killing members of the group;

b)       Causing serious bodily or mental harm to members of the group;

c)       Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d)       Imposing measures intended to prevent births within the group;

e)       Forcibly transferring children of the group to another group.

Article 7 - Crimes against humanity

1.       For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

a)       Murder;

b)       Extermination;

c)       Enslavement;

d)       Deportation or forcible transfer of population;

e)       Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

f)       Torture;

g)       Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, or any other form of sexual violence of comparable gravity;

h)       Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognised as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

i)       Enforced disappearance of persons;

j)       The crime of apartheid;

k)       Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

2.       For the purpose of paragraph 1:

a)       "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a state or organisational policy to commit such attack;

b)       "Extermination" includes the intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population;

c)       "Enslavement" means the exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children;

d)       "Deportation or forcible transfer of population" means forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law;

e)       "Torture" means the intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions;

f)       "Forced pregnancy" means the unlawful confinement, of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy;

g)       "Persecution" means the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity;

h)       "The crime of apartheid" means inhumane acts of a character similar to those referred to in paragraph 1, committed in the context of an institutionalised regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime;

i)       "Enforced disappearance of persons" means the arrest, detention or abduction of persons by, or with the authorisation, support or acquiescence of, a state or a political organisation, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.

3.       For the purpose of this Statute, it is understood that the term "gender" refers to the two sexes, male and female, within the context of society. The term "gender" does not indicate any meaning different from the above.

Article 8 - War crimes

1.       The Court shall have jurisdiction in respect of war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.

2.       For the purpose of this Statute, "war crimes" means:

a)       Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

b)       Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:

c)       In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:

d)       Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.

e)       Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:

f)       Paragraph 2 (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a state when there is protracted armed conflict between governmental authorities and organised armed groups or between such groups.

3.       Nothing in paragraphs 2 (c) and (d) shall affect the responsibility of a Government to maintain or re-establish law and order in the state or to defend the unity and territorial integrity of the state, by all legitimate means.

Reporting committee: Committee on Migration, Refugees and Demography.

Committee for opinion: Committee on Legal Affairs and Human Rights.

Budgetary implications for the Assembly: none.

Reference to committee: Doc. 7669 and Reference No 2125 of 7 November 1996.

Draft recommendation and draft order unanimously adopted by the committee on 24 June 1999.

Members of the committee : Mr Díaz de Mera (Chairman), Mr Iwiński, (Vice-Chairman), Mrs Aguiar, MM. Akselsen, Amoruso, Mrs Arnold (Alternate: Mr Soendergaard), MM. Atkinson (Alternate: Hancock), Aushev, Beaufays, Mrs Björnemalm, MM. Bogomolov, Bösch, Brancati, Branger (Alternate: Schreiner), Mrs Brasseur, Mrs Bušić, MM. Chiliman, Christodoulides, Chyzh, Cilevics, Clerfayt, Connor, Debarge (Alternate: Evin), Mrs Dumont, Mr Einarsson, Mrs Fehr, MM. Filimonov, Ghiletchi, Gyürk, Ivanov, Jakic, Lord Judd, Mrs Karlsson, MM. Koulouris, Kozlowski, Laakso, Lauricella, Liapis (Alternate: Mrs Katseli), Luís, Mrs Markovska, MM. Mateju, Melo (Alternate: Begaj), Minkov, Mularoni, Mutman, Ouzky, Pullicino Orlando, Rakhansky (Alternate: Strizhko), Mrs Rastauskiené, Mrs Roth, Mrs Sarishvili-Chanturia, MM. von Schmude, Sincai, Tabajdi, Tahir, Telek, Mrs Terpstra (Alternate: Mr Jurgens), MM. Thönnes (Alternate: Mrs Lörcher), Tkác, Mrs Vermot-Mangold, Mr Wray, Mrs Zwerver, N….. (Alternate: Mrs Guirado, Vice-Chair).

N.B. The names of those members present at the meeting are printed in italics.

Secretaries of the committee: Mr Newman, Mrs Nachilo, Mr Adelsbach.


1        Andorra, France, Lithuania, and Turkey.

2        The same countries as in footnote 1, except France.

3        Reservation or interpretative statement on becoming parties to the Conventions: Albania, Czech Republic, Germany, Hungary, Poland, Portugal, Romania, Russia, Slovakia, "the former Yugoslav Republic of Macedonia", Ukraine, and the United Kingdom.

      Reservation or interpretative statement on becoming parties to Protocol I: Austria, Belgium, Denmark, Germany, Iceland, Italy, Liechtenstein, Malta, Netherlands, Russia, Spain, Sweden, Switzerland, "the former Yugoslav Republic of Macedonia", and the United Kingdom.

      Reservation or interpretative statement on becoming parties to Protocol II: Austria, France, Germany, Liechtenstein, Malta, and Russia.

4        The Rapporteur has generally avoided using these terms, since there is perhaps some confusion about their legal definition, preferring the expression "serious violations of international humanitarian law". Nevertheless, the Statute of the International Criminal Court, adopted in 1998, does define three of the four categories of crimes within its jurisdiction: genocide, crimes against humanity and war crimes (cf. Appendix). For its part, ICRC has drafted the following definition of war crimes: "War crimes may be defined as serious violations of international humanitarian law, whether committed in the context of an international armed conflict or an armed conflict of a non-international character. The crimes are defined in numerous legal texts such as the Charter of the Nuremberg Tribunal (Second World War), the 1949 Geneva Conventions and their 1977 Additional Protocols, the Statutes and the case law of the International Criminal Tribunals for the Former Yugoslavia and for Rwanda (ICTY and ICTR), the Statute of the International Criminal Court (ICC) adopted in July 1998, as well as in various national laws and case law. The commission of a single act may constitute a war crime."

5        See Recommendation 1408 (1999) on the International Criminal Court (and Doc. 8401).

6 See Recommendation 1408 (1999) on the International Criminal Court (and Doc. 8401).

7 Council of Europe member States which have not made a declaration recognising the jurisdiction of the Commission without prior agreement are Albania, Andorra, Cyprus, Estonia, France, Georgia, Latvia, Lithuania, Moldova, San Marino and Turkey.